Write note on: Impeaching the credit of a witness. Explain as to how the credit of a witness may be impeached by the adverse party? How can a party impeach the credit of a witness in following circumstances: (1) Its own witness. (2) A witness produced by the opposite party.

The credibility of a witness is never beyond scrutiny. The law of evidence is built on the recognition that a witness who takes the oath is not infallible, and that the interests of justice demand that the court be equipped with every legitimate tool to test whether what is sworn to be true is actually true. Impeaching the credit of a witness is one such tool — perhaps the most powerful instrument that the adversarial system places in the hands of the litigant. It is governed primarily by Section 155 of the Indian Evidence Act, 1872 (IEA), now re-enacted as Section 158 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), read together with the related provisions on cross-examination, hostile witnesses, and the exclusion of contradictory evidence.

Nature and Meaning of Impeachment

To impeach the credit of a witness is to challenge the trustworthiness of that witness as a deponent — to demonstrate to the court that what the witness says ought not to be believed. It is not about proving the evidence untrue by direct rebuttal, which is a different exercise. Impeachment goes to the person of the witness — to the reliability, the honesty, and the consistency of the individual who stands in the witness box. The Supreme Court has repeatedly held that the credibility of a witness is always in issue, and that both parties are entitled to take reasonable steps to test it.

This right flows from the fundamental architecture of the adversarial trial. In Sat Paul v. Delhi Administration (AIR 1976 SC 294), the Supreme Court stated with characteristic force that the very object of cross-examination — in addition to eliciting facts favourable to the cross-examiner — is to test the veracity of the witness, to expose inconsistencies, and to impeach the credit that the court might otherwise place upon what the witness has said.

The Governing Provision: Section 155 IEA and Section 158 BSA

Section 155 of the IEA, corresponding to Section 158 of the BSA, sets out the modes by which the credit of a witness may be impeached. The provision lays down that the credit of a witness may be impeached —

• by the adverse party as a matter of right, and

• with the consent of the Court, by the party who calls the witness — that is, in the situation where the witness has turned hostile.

The three recognised modes of impeachment are:

First — by calling other witnesses who testify that, from their knowledge of the witness in question, they believe that witness to be unworthy of credit.

Second — by proof that the witness has been bribed, has accepted an offer of a bribe, or has received any other corrupt inducement to give evidence.

Third — by proof of former statements inconsistent with any part of the witness's evidence which is liable to be contradicted.

The Explanation to the section adds a further nuance: a witness who is called to say that another witness is unworthy of credit may not, in examination-in-chief, give the reasons for that belief. But those reasons may be elicited in cross-examination. If the reasons so given are false, the witness may be prosecuted for giving false evidence — but the reasons themselves cannot be contradicted.

First Mode: Witnesses to Bad Character

The first mode — calling witnesses who testify that the main witness is unworthy of credit — is ancient in origin. The idea is that a person who has a general reputation for untruthfulness should not be trusted when testifying under oath. Witnesses to character, however, depose only to general reputation and not to specific acts of untruthfulness. They must testify from their own knowledge of the witness, not from hearsay. The opinion of another court in another case as to the character of the witness cannot be brought in to impeach credibility under this mode.

The Explanation to Section 155 of the IEA and Section 158 of the BSA makes it clear that such a character witness, during examination-in-chief, can only state their belief that the witness is unworthy of credit. In cross-examination, however, the character witness can be pressed to give reasons for that belief. The answers, once given, cannot be contradicted — but if they are false, a prosecution for giving false evidence lies.

Second Mode: Bribery and Corrupt Inducement

The second mode strikes at the corrupt root of testimony. If it can be shown that a witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement — whether financial or otherwise — to give evidence in a particular manner, the court will obviously and rightly discount that testimony altogether. This is not merely a matter of credibility but goes to the foundation of the witness's evidence. This mode applies to both civil and criminal proceedings.

The Supreme Court has held that even the application of third-degree methods during investigation, which made it difficult for the witness to speak freely, could in certain circumstances be shown to be a corrupt inducement. The critical point is that the corrupt inducement must be proved — it cannot be merely alleged or suggested.

Third Mode: Prior Inconsistent Statements

The third mode is the most frequently used and the most jurisprudentially nuanced. Section 155(3) of the IEA and Section 158(c) of the BSA permit impeachment of a witness by proof of former statements inconsistent with any part of the evidence which is liable to be contradicted — that is, any part that is relevant to the matter in issue.

This mode must be read alongside Section 145 of the IEA (Section 148 of the BSA), which deals with cross-examination as to previous statements in writing. That section provides that a witness may be cross-examined as to a previous written statement without first showing it to him, but if the intention is to contradict him by that writing, his attention must, before the writing is proved, be called to those parts of it which are to be used for contradiction. In Balgangadhar Tilak v. Srinivasa (AIR 1915 PC 7), the Privy Council described this as "a fair and proper provision in accord with the sense of fair play to which courts are accustomed."

Illustration (a) to Section 155 captures this perfectly: A sues B for the price of goods sold and delivered. C, a witness, says that he delivered the goods to B. Evidence is offered to show that on a previous occasion, C said that he had not delivered the goods to B. The evidence is admissible to impeach the credit of C.

Illustration (b) takes it into the criminal domain: A is accused of the murder of B. C says that B, when dying, declared that A had given him the wound of which he died. Evidence is offered to show that on a previous occasion, C said that the wound was not given by A or in his presence. The evidence is admissible.

The Law Commission in its 185th Report recommended that Section 155(3) should be expressly made subject to Section 145, so that the confrontation procedure is required even for the purpose of impeachment — not only for contradiction. In practice, the Supreme Court has moved in that direction, holding in VK Mishra v. State of Uttarakhand (2015) 8 Scale 270 that previous written statements must be properly proved by confronting the witness with the relevant portions, before they can be used.

The Boundary: Section 153 of the IEA and Section 156 of the BSA

Impeachment of credit must not be confused with contradiction on matters collateral to the main issue. Section 153 of the IEA and Section 156 of the BSA establish a vital limiting rule: when a witness has been asked, and has answered, any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him. If he answers falsely, he may be prosecuted for giving false evidence — but collateral matters cannot become the subject of a further inquiry by calling more witnesses.

There are two exceptions. First, if the witness is asked whether he has been previously convicted of any crime and denies it, his previous conviction may be proved. Second, if the witness is asked a question tending to impeach his impartiality and denies the suggested facts, he may be contradicted. Illustration (d) to Section 153 captures the second exception: A is asked whether his family has had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted, because this goes to his impartiality and not merely to his general character. The purpose of this rule, as the Privy Council observed in Bhogilal v. Royal Insurance Co. (1928) 30 Bom LR 818, is to prevent trials from being spun out to unreasonable length by an endless investigation into the personal histories of witnesses.

(1) Impeaching the Credit of One's Own Witness

The general rule, deeply embedded in the structure of the adversarial system, is that a party may not impeach the credit of its own witness. This rule reflects the logic that a party who produces a witness vouches, implicitly, for that witness's reliability. The Evidence Act, however, has carved out a well-recognised and extensively judicially developed exception through Section 154 of the IEA — now Section 157 of the BSA.

Section 154 of the IEA (Section 157 of the BSA) provides: "The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party." Sub-section (2), inserted by the Criminal Law Amendment Act, 2005, further provides that nothing in sub-section (1) shall disentitle the party so permitted from relying on any part of the evidence of such witness. This sub-section codified what the Supreme Court had for long been holding in a series of cases.

When a witness turns hostile — that is, when a witness who was called to prove a particular fact either fails to do so or actively proves the contrary — the calling party may, with the court's permission, cross-examine that witness and impeach his credit under Section 155 of the IEA and Section 158 of the BSA. The court's permission is essential. It cannot be assumed. The permission must be asked for, though the court may also grant it suo motu when it sees fit.

What does it mean for a witness to be "hostile"? Neither the IEA nor the BSA uses that precise term, and the Supreme Court has been careful not to allow the term to carry the historical baggage it accumulated in English law. In Sat Paul v. Delhi Administration (AIR 1976 SC 294), the Supreme Court explained the concept with great care: the discretion conferred by Section 154 is unqualified and untrammelled. It is exercisable not only when the witness has made a prior inconsistent statement but also when the witness's demeanour, attitude, tenor of answers, or apparent unwillingness to speak the truth suggests to the court that the permission ought to be given. In Coles v. Coles (1866 LR 1 PD 70), Wilde J defined a hostile witness as one who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court — and this definition has been widely adopted in India.

In Rabindra Kumar Dey v. State of Orissa (AIR 1977 SC 170), the Supreme Court further elaborated that there must be some material to show that the witness is not speaking the truth. The mere fact that a witness, in an unguarded moment, speaks the truth which happens not to suit the prosecution is not enough. There must be an element of hostility — the witness must have resiled from a material statement made before an earlier authority, or must be found not to be speaking the truth on a matter of substance.

Once the permission is granted, the calling party may put to its own witness questions that may be put in cross-examination by the adverse party. This includes leading questions (permitted under Section 142 of the IEA, Section 146 of the BSA, with the court's permission), cross-examination as to previous written statements under Section 145 of the IEA (Section 148 of the BSA), and full impeachment of credit under Section 155 of the IEA (Section 158 of the BSA). The section uses the language "consent of the Court" for this purpose, which implies that the request must come from the party calling the witness before the court gives its assent — unlike the "permission" of Section 154 which the court may also exercise on its own motion.

Effect of Hostile Witness Testimony

One of the most practically significant aspects of the law on impeachment of one's own witness is what happens to the evidence already given. The old view, maintained by some High Courts, was that once a witness was declared hostile, his entire evidence should be thrown out. The Supreme Court has, in a consistent and emphatic line of authority, rejected this view.

The correct position, as stated in State of UP v. Ramesh Prasad Misra (AIR 1996 SC 2766), is that the evidence of a hostile witness is not to be excluded entirely or rendered unworthy of consideration. His testimony remains admissible. A conviction can be based upon it if it finds corroboration. That part of the evidence contained in the examination-in-chief which remains unshaken even after cross-examination is fully reliable, even though the witness has been declared hostile. The party can challenge and attack its own witness with regard to the part adverse to that party but can still rely on the part that is favourable.

In Gurpreet Singh v. State of Haryana (AIR 2002 SC 3217), the Supreme Court stated plainly that the deposition of a hostile witness can be relied upon at least to the extent that it supports the case of the prosecution. The maxim falsus in uno, falsus in omnibus — false in one thing, false in everything — does not apply to the deposition of a hostile witness. In SC Goel v. State through CBI (2017 Cr LJ 536), the Supreme Court held that merely because a witness was declared hostile with regard to certain aspects of his evidence, the entire evidence cannot be discarded.

It must be emphasised that the declaration as a hostile witness must be made immediately at the time the witness begins to give hostile testimony. It cannot be permitted long after the witness has been examined, as the Supreme Court has held in a series of decisions.

(2) Impeaching the Credit of a Witness Produced by the Opposite Party

In the case of a witness produced by the adverse party, the right to impeach credit arises naturally and as a matter of right through cross-examination. Section 155 of the IEA and Section 158 of the BSA expressly provide that the credit of a witness may be impeached by the adverse party. No court order or permission is required for the adverse party to invoke the modes of impeachment — unlike the situation of the calling party's own witness, where the court's consent is necessary.

The adverse party, in cross-examination, may deploy all three modes — calling evidence of bad character, proof of bribery, and proof of prior inconsistent statements. Beyond these, Section 146 of the IEA and Section 149 of the BSA permit the cross-examiner to ask questions which tend to test the veracity of the witness, to discover who the witness is and what his position in life is, and to shake his credit by injuring his character. These questions may be asked even if the answers might tend to incriminate the witness or expose him to a penalty.

However, these powers are not without limits. The court has an important supervisory role:

• Under Section 149 of the IEA and Section 152 of the BSA, no question imputing a charge against a witness may be asked without reasonable grounds for believing the imputation to be well-founded.

• Under Section 150 of the IEA and Section 153 of the BSA, if such a question is asked without reasonable grounds, the court may report the conduct of the advocate to the High Court.

• Under Section 151 of the IEA and Section 154 of the BSA, the court may forbid any question it regards as indecent or scandalous, unless it relates to facts directly in issue.

• Under Section 152 of the IEA and Section 155 of the BSA, the court must forbid any question intended to insult or annoy the witness.

The most important procedural safeguard when impeaching by prior inconsistent statements is the confrontation rule. Section 145 of the IEA and Section 148 of the BSA require that, if it is intended to contradict a witness by a previous written statement, his attention must first be called to the relevant parts of that writing before it is proved. This rule, rooted in the principle of fairness articulated in Browne v. Dunn (1894 6 R 67 HL) by Lord Herschell, ensures that the witness is given the opportunity to explain any apparent inconsistency. The Supreme Court has consistently enforced this rule: in Murugesan v. State, the court held that counsel cannot hold a prior statement in one hand and the testimony of the witness in the other and argue contradiction without having shown the witness the earlier statement during cross-examination.

There is an important boundary between what can and cannot be done when impeaching the credit of a witness of the adverse party. Section 153 of the IEA and Section 156 of the BSA draw that line: once a witness has answered a question going only to his credit by injuring his character, no evidence can be called to contradict what he has said. The trial cannot spin off into a sub-trial about the personal history of the witness. The exceptions — previous conviction if denied, and impartiality if denied — are carefully limited. In State of Karnataka v. K. Yarappa Reddy (AIR 2000 SC 185), the Supreme Court held that where a witness had not been asked questions in cross-examination with a view to contradicting a particular part of her testimony, the opposing party was not permitted to later contradict her through the testimony of other witnesses on that point.

Procedural Distinctions at a Glance

Impeaching Credit of Dead Persons

A word must be said about an ancillary but important provision. Section 158 of the IEA and the corresponding provision in the BSA deal with the situation where statements of persons who are dead or unavailable have been proved as relevant under Sections 32 or 33 of the IEA. Since such persons cannot be called as witnesses, they cannot be cross-examined. Section 158 permits proof of all matters that might have been proved had such person been alive and called as a witness — including facts that would impeach or confirm the credit of the maker of the statement. The underlying logic is that the same testing that live witnesses undergo must, as far as possible, be applied to the statements of those who can no longer speak for themselves.

In the final analysis, the law on impeaching the credit of a witness represents one of the most carefully balanced chapters in the law of evidence. It gives each party the tools to expose a dishonest or inconsistent witness, while simultaneously protecting the witness from harassment, character assassination, and the digression of the trial into fruitless collateral inquiries. The interplay of Sections 154, 155, 145, 146, 148, 153, and 158 — their equivalents in the BSA being Sections 157, 158, 148, 149, 151, 156, and the general scheme of Chapter X — weaves a tight network of rights, duties, and judicial supervision, all aimed at the single objective that Justice Bentham so memorably declared: witnesses are the eyes and ears of justice, and the law must ensure that those eyes see clearly and those ears hear truly.